Moser vs. Limai Montessori Academy Cypress, LLC

Defendants’ Late Opposition

After Plaintiff filed a reply brief and notice of Defendants’ failure to file opposing papers on 7/2/26 (ROA 251), The Limai Defendants filed opposing papers on 7/6/26 (ROA 253).

The court exercises its discretion to consider Defendants’ late-filed opposing papers (ROA 253), as well as Plaintiff’s supplemental reply papers filed in response to the late opposing papers (ROA 255 and ROA 257).

Entitlement to Legal Fees

Attorney fees are recoverable “when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.” (Code Civ. Proc., § 1033.5(a)(10).) Under the default “American rule”, which has been codified as part of the Code of Civil Procedure, each party to a lawsuit must usually pay its own attorney’s fees. (See Code Civ. Proc., § 1021.)

Here, Plaintiff identifies Labor Codes sections 1194(a) and 218.5(a) as the statutory basis for their entitlement to fees.

Labor Code section 1194(a) states, “Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime

compensation, including interest thereon, reasonable attorney's fees, and costs of suit.”

Labor Code § 218.5(a) authorizes a plaintiff to recover reasonable attorney’s fees and costs “[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.” (Lab. Code, § 218.5(a).)

Here, after a nonjury trial, the court entered judgment in favor of Plaintiff on her complaint against Defendants Limai Montessori Academy Cypress, LLC and Limai Holdings, Inc, jointly and severally, in the total amount of $54,102.28. The court also entered judgment in favor of Defendants SIMON WEH SHAO aka SIMON SHAO (“Shao) and JINGCHUN ZHANG aka SPRING ZHANG (“Zhang”) on the Complaint.

The court finds that as between Plaintiff and the Limai Defendants, Plaintiff is the prevailing party and is entitled to recover reasonable attorney’s fees and costs on claims covered under Labor Code sections 1194(a) or 218.5(a). As between Plaintiff and Defendants Shao and Zhang, the court finds that Plaintiff is not the prevailing party. As such, Plaintiff is not entitled to recover attorneys’ fees and costs related to Shao and Zhang.

Apportionment of Causes of Action

In her Complaint, Plaintiff asserted six causes of action, three based on the failure to pay wages, two based on legal violations (failure to provide meal breaks and failure to provide accurate wage statements) and one based on unfair competition.

As to Plaintiff’s labor code violation causes of action, courts have conflicting reasoning regarding whether or not attorneys’ fees are recoverable under Section 218.5(a) for certain claims.

In Ramos v. Garcia, the court held, “If the employee's action was instead brought to remedy an employer's legal violation (i.e., failure to provide a mandatory meal/rest break; § 226.7), there is no basis for awarding fees under

section 218.5 (or under § 1194).” (Ramos v. Garcia (2016) 248 Cal.App.4th 778, 785). “In such a case, employee claims are to be governed by the default American rule that each side must cover its own attorney fees.” (Id.) “Where there are multiple claims alleged in the complaint, a party need not prevail on all of the claims in order to qualify as a “prevailing party” under section 218.5, but may seek fees on only those claims to which section 218.5 applies.” (Id. at 786.)

In Betancourt, the court held, “extra pay for missed breaks constitutes ‘wages’ that must be reported on statutorily required wage statements during employment (Lab. Code, § 226) and paid within statutory deadlines when an employee leaves the job.” (Betancourt v. OS Restaurant Services, LLC (2022) 83 Cal.App.5th 132, 139). Where “plaintiff's complaint sought penalties, costs and attorney fees under section 226 for failing to include rest break premiums on her itemized wage statements; and waiting time penalties under sections 201 through 203 for failure to pay all wages on termination. . . [t]hese were claims for nonpayment of wages.” (Id. at 140.) Reasonable attorneys’ fees are recoverable for such claims under section 218.5. (Id.)

Although the Supreme Court did not analyze attorney’s fees under section 218.5, in analyzing premium pay statutes, the Supreme Court has reasoned that premium pay for unlawfully denying an employee a meal or rest break constitutes “wages” for purposes of the Labor Code section providing for waiting time penalties. (Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 117).

Here, the reasoning in Betancourt appears more persuasive. Of the six causes of action alleged by Plaintiff, the court finds that four relate to the payment of wages and are recoverable under section 218.5(a) (i.e., the first cause of action for failure to pay wages, the second cause of action for failure to pay overtime wages, the third cause of action for failure to provide required rest periods, and the fifth cause of action for failure to pay wages upon discharge) or section 1194(a) (second cause of action for overtime claim only).

And here, Plaintiff prevailed on two causes of action against the Limai Defendants—i.e., the second cause of action for the failure to pay overtime wages and the third cause off action to provide required rest periods. Plaintiff, however, did not prevail on Plaintiff’s remaining four causes of action.

When a cause of action for which attorney fees are provided by statute or contract is joined with other causes of action for which attorney fees are not permitted, attorney fees are only recoverable on the contract/statutory cause of action. (Akins v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79 Cal. App. 4th 1127, 1133-1134.) This generally requires the trial court to apportion the fees so that the losing party is only required to pay for such fees as were incurred in prosecuting or defending the statutory action. (Bell v. Vista Unified School Dist. (2000) 82 Cal. App. 4th 672, 687.)

But apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units. (Akins, 79 Cal.App.4th at 1133.)

As explained below, the court finds that apportionment is appropriate in this case.

Apportionment between Defendants

Here, Plaintiff did not prevail on her claims against Defendants Shao and Zhang. As such, fees are not recoverable against Shao and Zhang.

“To the extent [a prevailing defendant's] shared counsel engaged in litigation activity on behalf of [a codefendant] for which fees are not recoverable, the [trial] court has broad discretion to apportion fees.” (Hill v. Affirmed Housing Group (2014) 226 Cal.App.4th 1192, 1197). “A court may apportion fees even where the issues are connected, related or intertwined.” (Ibid.) And “although time-keeping and billing procedures may make a requested segregation difficult, they do not, without more, make it

impossible.” (Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1297.)

Here, Plaintiff has failed to identify time entries that are related to the Limai Defendants (against whom fees are recoverable) and Shao/Zhao (against whom fees are not recoverable). The court finds that the legal theories alleged against the individual defendants are distinct from the legal theories against the Limai Defendants. The basis for Plaintiff’s liability against the individual defendants require Plaintiff to establish alter ego liability. As such, the claims between the Limai Defendants and the individual defendants are not necessarily inextricable intertwined. Apportionment between fees related to the Limai Defendants and the individual defendants is appropriate here.

Lodestar Analysis Before Apportionment

When determining a reasonable attorneys’ fee award using the lodestar method, the court begins by deciding the reasonable hours the prevailing party’s attorney spent on the case and multiplies that number by the prevailing hourly rate for private attorneys in the community who conduct noncontingent litigation of the same type. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998; see also Environmental Protection Info. Ctr. v. California Dep’t of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 248.) The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

The court has the discretion to increase or decrease the lodestar figure by applying a positive or negative multiplier based on a variety of factors that the court did not consider when determining the lodestar figure, such as the novelty and difficulty of the issues presented, the extent to which the nature of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award. (See Northwest Energetic Servs., LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 879-82; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) The court is not required to impose a multiplier; the

decision is discretionary. (Galbiso, 167 Cal.App.4th at 1089; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241.)

Here, Plaintiff seeks to recover for the following:

Attorney Rate Hours Amount Jeffrey Gwynn $400-$475 262 $118,210 Alexander Chang $400-$475 40.30 $17,357.50 Sara Wang $395-$425 460.80 $191,870 Jung Kim $325-$350 36 $12,155.00 Anticipated 5 $2,275 Reply/Hrg Total 804.1 $341,867.50

The court finds that the rates charged by counsel are reasonable. The hourly rates range from $325 to $475. The court finds that these rates are reasonable for the market for the type of work this case entailed based on the skills and experience of counsel.

Plaintiff seeks recovery for 804.1 hours of work. Defendants do not identify any line items that Defendants claim are unreasonable or unrecoverable. Rather, Defendants only object to the $12,155 in fees for attorney Jung Kim’s work. Attorney Jung Kim apparently no longer works for Plaintiff’s counsel’s law firm. As such, Defendants contend that Attorney Kim’s work should be excluded as inadmissible hearsay. The court overrules Defendants’ objection. The time spent by Attorney Kim was properly authenticated as a business record of Plaintiff’s counsel.

Because Defendants do not identify any other specific line item, the court will not reduce any hours of work performed.

“[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous." (Horsford v Board of Trustees of California State University (2005)132 Cal.App.4th 359, 396; Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1367 [declarations of counsel

are also "sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the need to produce copies of counsel's detailed billing statements."].) Here, the court finds that Plaintiff’s counsel’s billing statements are sufficient to meet Plaintiff’s initial burden of establishing the reasonableness of the fees sought.

To oppose a showing of a fee request supported by declarations describing the efforts taken with billing records to establish the hours of work, a party may “attack the itemized billings with evidence that the fees claimed were not appropriate, or obtain the declaration of an attorney with expertise in the procedural and substantive law to demonstrate that the fees claimed were unreasonable.” (Premier Med. Mgmt. Sys. v. Cal. Ins. Guarantee Assoc. (2008) 163 Cal.App.4th 550, 563-564.) “The party opposing the fee award can be expected to identify the particular charges it considers objectionable. A reduced award might be fully justified by a general observation that an attorney overlitigated a case or submitted a padded bill or that the opposing party has stated valid objections.” (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 101.)

Here, Defendants failed to meet their burden of attacking any itemized billing or charges or otherwise establishing that any number of hours sought for recovery are excessive, objectionable, and/or unreasonable.

Lodestar Analysis After Apportionment

Having found that the rates Plaintiff requested were reasonable and the number of hours reasonable, the court must then apportion amounts from the $341,867.50 sought based on recoverable claims against recoverable defendants.

Having reviewed the record in this matter, having presided over the trial and evidence in this matter, having reviewed the work performed in Plaintiff’s time sheets, the court uses its discretion to apportion Plaintiff’s fees and finds that $116,918 of the fees requested are based on recoverable claims against recoverable defendants. As such, the Lodestar amount is $116,918.

Multiplier

In determining whether to apply a multiplier, the court considers a variety of factors that the court did not consider based when determining the lodestar figure, such as the novelty and difficulty of the issues presented, the skill displayed in presenting them, the extent to which the nature of the litigation precluded other employment by the attorneys, and the contingent nature of the fee award. (See Ketchum, 24 Cal.4th at 1132-1134; Northwest Energetic Servs., LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 879-82; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) The court is not required to impose a multiplier; the decision is discretionary. (Galbiso, 167 Cal.App.4th at 1089; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1241.)

Here, the court determines that a multiplier is not appropriate here and therefore declines to award the requested 1.5 lodestar multiplier.

Attorneys’ Fees Awarded

For the reasons set forth above, the court awards Plaintiff Alexis T. Moser a total attorney’s fee award of $116,918 against Defendants Limai Montessori Academy Cypress, LLC and Limai Holdings, Inc., jointly and severally.

Costs

Prejudgment costs must be claimed and contested in accordance with the rules adopted by the Judicial Council. (Code Civ. Proc., § 1034(a).)

Plaintiff timely filed a memorandum of costs. (ROA 240). Defendants have not filed a timely motion to tax or strike costs to challenge any of Plaintiff’s cost items.

As such, the court awards Plaintiff $17,954.49 in costs against Defendants Limai Montessori Academy Cypress, LLC and Limai Holdings, Inc., jointly and severally.

Plaintiff to give notice and submit an Amended Judgment forthwith.

3 Wang vs. Bui Motion to Tax Costs

The court DENIES in part, and GRANTS in part, Plaintiffs JIN WANG, M.D. and CHIRAG VAIDYA, M.D.’s motion to tax costs.

In their one-page memorandum of points and authorities (ROA 541), Plaintiffs argue that the Defendants’ failure to use the Judicial Council Worksheet for the Memorandum of Costs (MC-11) is sufficient grounds to strike the Defendants’ entire memorandum of costs.

As Defendants note in their opposing papers, Plaintiffs’ argument lacks merit. Rule 3.1700 of the California Rules of Court requires a party to serve and file a memorandum of costs; It does not require the use of the Worksheet. As the court held in Ladas v. California State Automotive Association (1993) 19 Cal.App.4th 761, 774, “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.”

As such, Plaintiffs’ argument for striking the entire cost memorandum is without merit and as such, the court DENIES the request to strike the entire cost memorandum.

Shortly after Defendants provided a set of exhibits to support the charges claimed, Plaintiffs filed a reply brief wherein they challenge certain deposition costs and filing fees.

Deposition Costs

Plaintiffs argue that the court should tax $1,351.25 for a claimed deposition no-show on 4/14/22. The last page of Defendants’ Exhibit List, which was belatedly filed on

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